Bowden v. Brown

• Citation: 86 N.E. 351,200 Mass. 269
• Parties: BOWDEN et al. v. BROWN et al.
• Decision Date: 24 November 1908
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 269

86 N.E. 351

BOWDEN et al. v. BROWN et al.

Supreme Judicial Court of Massachusetts, Essex.

November 24, 1908

COUNSEL

Dana Malone, Atty. Gen., and Fred T. Field, Asst. Atty. Gen.

Frederick Manley Ives, for respondents.

OPINION

KNOWLTON C.J.

Sarah E. Goodwin, late of Marblehead, deceased, after giving certain legacies in her will, provided for the remainder by language which ends as follows: 'Be given to the town of Marblehead toward the erection of a building that should be for the sick and poor, those without homes. I leave this in the hands of William S. Bowden, Mary G. Brown and William Reynolds of Marblehead.' This gift constitutes a public charity. Richardson v. Mullery (Mass.) 86 N.E. 319 and cases cited. But by the terms of the will, it is to go to a designated donee, to be used for a specified purpose, for the benefit of a certain class of sick and poor. The donee the town of Marblehead, at a meeting of the voters has declined to accept the legacy. It was given 'toward the erection of a building' by the town. The action of the town is equivalent to a refusal to erect such a building. It appears that the charity cannot be administered in the way stated in the will. It therefore must fail altogether, unless it can be administered under the doctrine of cy pres. The question arises whether the purpose of the testatrix was to give her property for this specific charity, or whether her charitable purpose was general, so that the court is authorized to apply the money to some other charity, similar to that mentioned in the will, under a scheme to be devised for that purpose. It is manifest that the amount of the property, which is only about $8,000, is insufficient for the erection and maintenance of such a building as the testatrix contemplated. She expected that the building would be erected and maintained by the town, with such aid as would be derived from the use of her gift. The trust was not for the erection of a building by trustees under her will, entirely from the proceeds of her property. It being impossible to do that which the testatrix had in mind, can we discover a purpose to do something else of a similar character? We think not. There is nothing to indicate that she intended to make provision generally for the sick and poor of the town, or particularly for those without homes, unless they could be provided with a home in a building to be erected for their use. ...